IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

James W. Wirtz, III, :

 Plaintiff, : Case No. 2:11-cv-1131

 v. : JUDGE GEORGE C. SMITH

Timothy Buchanan, et. al, : Magistrate Judge Kemp

 Defendants. : 

REPORT AND RECOMMENDATION

Plaintiff, James W. Wirtz, III, a state prisoner at the Ross

Correctional Institution, filed this action under 42 U.S.C. §1983

seeking damages for an alleged denial of medical care. His

complaint names the following defendants: RCI Warden Timothy

Buchanan, RCI Health Care Administrator Lisa Bethel, Podiatrist

Dr. Friday, Chief Medical Officer Dr. Gary Krisher, Institutional

Inspector Robert Whitten, ODRC Medical Director Dr. Andrew Eddy,

and a number of John and Jane Does, who have never been

identified. Briefly, Mr. Wirtz claims that the defendants did

not replace his ankle brace after it was stolen (apparently by

another inmate) and that they also failed to provide him with

necessary accommodations, such as a bottom bunk assignment, while

he waited for the replacement brace.

Mr. Wirtz filed two motions for summary judgment. In

addition to responding to those two motions, defendants filed

their own motion for summary judgment, which is now fully

briefed. For the following reasons, the Court will recommend

that judgment be entered in favor of the defendants.

I. Factual Background

The facts recited here are taken from Mr. Wirtz’s sworn

complaint, the exhibits attached to the complaint, and the

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affidavits or declarations submitted with the summary judgment

motions. As explained in the next section of this Report and

Recommendation, any disputed issues of fact will be resolved in 

Mr. Wirtz’s favor for purposes of ruling on the defendants’

summary judgment motion, but just the opposite standard will be

used with regard to the two motions which he has filed. The

Court will not consider any of the affidavits filed with the

reply brief, however, because the requirement set forth in Local

Civil Rule 7.2(d) that “[e]vidence used to support a reply

memorandum shall be limited to that needed to rebut the positions

argued in memoranda in opposition,” has not been met here, and

because defendants’ failure to comply with that rule has

prevented Mr. Wirtz from responding to this new evidence, which

could easily have been submitted as part of defendants’ original

motion.

According to Mr. Wirtz, while he was incarcerated at the

Corrections Medical Center, he was examined by staff regarding

ankle pain and weakness and was issued an ankle brace (Complaint,

¶11). Following this examination, Mr. Wirtz was transferred to

Ross Correctional Institution (Exhibits to Complaint, Doc. 21, at

15). His ankle brace was stolen shortly thereafter (Complaint, 

¶12), apparently on or about September 17, 2010.

After the theft, Mr. Wirtz advised his unit Sergeant of the

theft and went on sick call. When he saw a nurse, Mr. Wirtz was

given an ACE bandage and some ibuprofen and was referred to Dr.

Friday, the podiatrist. Dr. Friday saw Mr. Wirtz about a month

to six weeks later and diagnosed right ankle ligament laxity. 

However, instead of ordering a new brace, Dr. Friday told Mr.

Wirtz that he had to check to see whether the theft was Mr.

Wirtz’ fault; apparently, ODRC has a policy (DRC policy 68-MED14) of not replacing items such as ankle braces at the State’s

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expense if the inmate was responsible in some way for the loss of

that item. 

Mr. Wirtz next saw Dr. Friday in January, 2011, at which

time he was told that Dr. Friday was still checking on the issue

of whether Mr. Wirtz was at fault for the loss of his ankle

brace. (Complaint, ¶14). Although he was told he would be seen

again in a month, Mr. Wirtz did not get back in to see Dr. Friday

until June, 2011. It appears that Dr. Friday agreed to send Mr.

Wirtz back to the Corrections Medical Center to have another

brace made; a note from Nurse Rice dated September 10, 2011, so

states. (Exhibits, at 7). On October 3, 2011, still not having

received his ankle brace, Mr. Wirtz kited Ms. Bethel about the

issue. (Exhibits, at 8). Mr. Wirtz had also asked for a bottom

bunk restriction after he lost his brace, but this was not

ordered until October 13, 2011. (Exhibits, at 11). A final

disposition of his grievance on these issues, written by Mr.

Whitten on November 1, 2011, shows that as of that date Mr. Wirtz

was still waiting for the brace, although it had been ordered;

Mr. Whitten’s response also states that the reason for much of

the delay was the fact that the incident report written by

Sergeant Corey showed that Mr. Wirtz had admitted to leaving his

cell door open when he went to shower, so that he was at fault

for having his ankle brace stolen. Apparently, he got the new

brace notwithstanding objections from RCI’s chief medical

officer. (Exhibits, at 17.1). While awaiting the brace,

however, Mr. Wirtz fell while climbing down from his bunk and

injured his head, wrist, shoulder and thigh. (Complaint, ¶29. 

X-rays taken following that fall were negative, see Exhibits, at

24.2, but Mr. Wirtz alleges that he has been in pain since the

fall and has difficulty lifting his right arm above his head or

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pushing or lifting more than 30 pounds. He finally got his new

brace on November 7, 2011. (Complaint, ¶34). 

 II. Legal Standard

The Court must grant a motion for summary judgment when

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The moving party has the burden of showing the absence of

genuine disputes over facts which, under the substantive law

governing the issue, might affect the outcome of the action.

Celotex, 477 U.S. at 323. 

Since Mr. Wirtz signed his complaint under penalty of

perjury, his complaint carries the same weight as would an

affidavit for the purposes of summary judgment. El Bey v. Roop,

530 F.3d 407, 414 (6th Cir. 2008); see also Williams v. Brownman,

981 F.2d 901, 905 (6th Cir. 1992). In addition, his verification

extended to the exhibits to the complaint. As noted above, the

Court must, when considering defendants’ motion, give these

materials evidentiary weight and draw all reasonable inferences

from them in Mr. Wirtz’ favor.

III. Mr. Wirtz’s First Summary Judgment Motion

 Mr. Wirtz’s first summary judgment motion appears to be

directed to some affirmative defenses raised in the defendants’

answer, as well as to their general refusal to admit or deny

allegations in the complaint due to “want of knowledge.” Mr.

Wirtz argues that the defendants had adequate documentation to

make a more specific response to his factual allegations, and

that their defenses of lack of subject matter jurisdiction,

failure to state a claim upon which relief can be granted, and

failure to exhaust administrative remedies lack merit. In

response, defendants comment on the attack on the sufficiency of

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their pleaded defenses only in passing, and argue that Mr. Wirtz

did not adequately support his motion as required by Rule 56 and

that he is therefore not entitled to summary judgment on the

merits of his Eighth Amendment medical claim.

To some extent, the defendants’ response falls wide of the

mark. A party may move for summary judgment on any issue in the

case, and such motions need not be limited to the ultimate merits

of that party’s affirmative claim for relief. See, e.g., Varela

v. Demmon, 491 F.Supp. 2d 442 (S.D.N.Y. 2007)(treating

defendants’ motion to dismiss for failure to exhaust

administrative remedies under the PLRA as one for partial summary

judgment); see also Ferreri v. City of Strongsville, 2011 WL

114331, *10 (N.D. Ohio Jan. 13, 2011)(“the Court rejects the

Defendants' argument that it is not permissible for the Plaintiff

to move for summary judgment on affirmative defenses”). It would

appear that, just as a defendant might be entitled to summary

judgment on the issue of failure to exhaust if the facts show a

clear failure to do so, a plaintiff might be entitled to summary

judgment on that issue if the facts show that he did properly

exhaust all of his prison grievance remedies. Further, as to any

affirmative defense on which the defendants - who, in this case,

are the non-moving parties with respect to the exhaustion defense

- bear the burden of proof (and defendants do have that burden,

see Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012)), Mr.

Wirtz, as the movant, need not produce evidence in support of a

summary judgment motion. Rather, on this type of issue, the nonmoving party must, in response to a summary judgment motion,

provide affirmative evidence in support of its claim. As this

Court held in The Way Intern., Inc. v. Executive Risk Indem.,

Inc., 2009 WL 3157403, *2 (S.D.Ohio Sept. 28, 2009), citing to

Celotex, supra, at 322, “[s]ummary judgment must be entered

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‘against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial.’” Further, if the motion rests on the absence of proof on

such an issue, “[t]he burden ... shifts to the nonmoving party

who ‘must set forth specific facts showing that there is a

genuine issue for trial.’” Id., quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250(1986), quoting former Fed.R.Civ.P.

56(e). 

Here, defendants did not, in their response to Mr. Wirtz’s

first summary judgment motion, present any evidence on the issue

of whether Mr. Wirtz properly exhausted his prison administrative

remedies. Thus, using the legal rules cited above, it would

appear that Mr. Wirtz is entitled to summary judgment in his

favor on the issue of exhaustion.

The other issues which defendants raised by way of defense,

however (lack of subject matter jurisdiction and failure to state

a claim) are not subject to the same analysis. Unlike failure to

exhaust, lack of subject matter jurisdiction is not an

affirmative defense on which the defendants have the burden of

proof. Rather, from a procedural point of view, the defense of

lack of subject matter jurisdiction is more properly raised in a

motion filed under Fed.R.Civ.P. 12(b)(1), and under Rule

12(h)(3), “[i]f the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.” 

Although the Court may consider, in ruling on such a motion,

matters outside the pleadings, it still treats the motion as one

to dismiss and is not entitled to convert the motion to one for

summary judgment. See Wheeler v. Hurdman, 825 F.2d 257, 259

(1987). Further, it is the party invoking the Court’s

jurisdiction - here, Mr. Wirtz - who has at all times the burden

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of demonstrating the existence of that jurisdiction. “The burden

of persuasion for establishing ... jurisdiction, of course,

remains on the party asserting it.” Hertz Corp. v. Friend, 130

S.Ct. 1181, 1194 (2010). Thus, his summary judgment motion on

this issue is technically improper, although the Court agrees

with Mr. Wirtz that it has jurisdiction over claims brought by a

state prisoner against prison officials for constitutional

violations, see, e.g., Estelle v. Gamble, 429 U.S. 97, 106

(1976), and defendants have not argued otherwise. 

The remaining issues raised by Mr. Wirtz’s first motion are

directed both to the sufficiency of defendants’ answer and to the

issue of whether he has stated a claim upon which relief can be

granted. These issues both go to the merits of his underlying

Eighth Amendment claim and, at least with respect to the

defendants’ failure to admit many of his allegations due to lack

of knowledge, are now of little consequence in light of the

development of the factual record through summary judgment

proceedings. See, e.g., Granger v. Marek, 583 F.3d 781, 786 (6th

Cir. 1978)(“‘The very mission of the summary judgment procedure

is to pierce the pleadings and to assess the proof in order to

see whether there is a genuine need for trial.’ Notes of Advisory

Committee on 1963 Amendment”). The Court will therefore

determine these issues on the basis of the summary judgment

motions directed to the merits of the case.

IV. The Remaining Summary Judgment Motions

Mr. Wirtz’s second summary judgment motion places the merits

of his Eighth Amendment claim directly in issue. In response to

that motion, defendants argued, among other things, that the

motion was not properly supported by any evidence as required by

Fed.R.Civ.P. 56(c)(1)(A), which provides that a party who claims

that a certain fact cannot be disputed must support that

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assertion by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions,

interrogatory answers, or other materials ....” In their own

motion, the defendants similarly place the merits of the case in

issue. The Court will therefore treat these motions together

because they raise the same question for resolution, which is

whether there are genuine issues of material fact which require

resolution at trial rather than at the summary judgment motion

stage.

The Court begins by reviewing the law applicable to a claim

of deliberate indifference to serious medical needs. For an

inmate to prevail on a claim that a prison official has violated

his Eighth Amendment right to adequate medical care, he must both

demonstrate that a deprivation that is objectively “sufficiently

serious” and that the defendant prison official had a

“sufficiently culpable state of mind,” such that he or she showed

“deliberate indifference” to the inmate’s health and safety. 

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

A “sufficiently serious” deprivation (including lack of

medical care) entails “incarcerat[ion] under conditions posing a

substantial risk of serious harm.” Farmer, 511 U.S. at 834. 

Such a risk must be one which society deems “so grave that it

violates contemporary standards of decency to expose anyone

unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25,

36 (1993). The alleged deprivation must cause an inmate more

than “mere discomfort or inconvenience.” Grant v. Taft, 2007 WL

1469403, *3 (S.D. Ohio May 18, 2007). Indeed, to qualify as a

“sufficiently serious” deprivation, the prison official’s action

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or omission must result in the denial of “the minimal civilized

measure of life’s necessities.” Farmer 511 U.S. at 834. 

In addition to demonstrating a “sufficiently serious”

injury, an inmate must also provide evidence showing that a

prison official had a “sufficiently culpable state of mind.” 

Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Specifically, the

Supreme Court has held that to be in violation of the Eighth

Amendment, a prison official’s culpability must rise to the level

of deliberate indifference, “a state of mind more blameworthy

than negligence.” Farmer, 511 U.S. at 835. To be found

“deliberately indifferent,” one must exhibit a “subjective

recklessness.” Farmer, 511 U.S. at 839. Deliberate indifference

may be met through “sufficiently harmful” omissions. Estelle v.

Gamble, 429 U.S. 97, 106 (1976). Nonetheless, a prison official

who is deliberately indifferent shows “more than [an] ordinary

lack of due care for the prisoner's interests or safety.” 

Farmer, 511 U.S. at 835, citing Whitley v. Albers, 475 U.S. 312,

319 (1986). 

With regard to withholding medical care, the Estelle Court

explicitly distinguished “deliberate indifference to serious

medical needs of prisoners” from “negligen[ce] in diagnosing or

treating a medical condition.” 429 U.S. at 106. “A complaint

that a physician has been negligent in diagnosing or treating a

medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment.” Id. Consequently, in

order to violate an inmate’s Eighth Amendment rights, a prison

official must have actual knowledge of a substantial risk of

harm. This means that even if that official is aware of facts

from which one could conclude that a substantial risk exists, the

official must actually draw that conclusion. Grant v. Taft, 2007

WL 2007 WL 1469403, *3 (S.D. Ohio May 18, 2007), citing Farmer,

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511 U.S. at 839. A prison official who reasonably responds to a

risk of injury posed by a serious medical condition may not be

found liable under the Eighth Amendment. Id.

Most of the defendants - all except defendant Dr. Friday,

who actually treated Mr. Wirtz for his ankle condition - ask for

summary judgment on grounds that they acted only in a supervisory

capacity (for example, by responding to grievances) or did not

act at all. They point out that the complaint itself provides

few, if any, details as to how each of them allegedly deprived

Mr. Wirtz of his right to adequate medical care, and that the

complaint either fails to state sufficient facts about their

involvement to state a claim for constitutional deprivations, or

alleges actions such as responding (or failing to respond) to

grievances which, under cases like Shehee v. Luttrell, 199 F.3d

295 (6th Cir. 1999), do not subject them to liability. Dr.

Friday, by contrast, argues that Mr. Wirtz did not “provide

evidence of either the objective component or the subjective

component of [an Eighth Amendment] claim.” Defendants’ motion

for summary judgment, Doc. 34, at 13. If, in fact, Mr. Wirtz’s

claim against Dr. Friday fails, so would his claim against any

other defendant, because it was Dr. Friday who was primarily

responsible for examining and treating Mr. Wirtz’s medical

condition, and if he was not deliberately indifferent to Mr.

Wirtz’s serious medical needs, no other defendant who concurred

in his assessment and treatment could have been deliberately

indifferent either.

As discussed above, in order to withstand defendants’ motion

for summary judgment, Mr. Wirtz must demonstrate that he had a

serious medical condition and that Dr. Friday was deliberately

indifferent to that condition. Turning first to the objective

component - the existence of a serious medical need - the gist of

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Mr. Wirtz’s claim is that he suffered serious injury as a result

of the delay in obtaining a replacement brace designed to treat

his ankle condition. 

The issue of whether a delay in medical treatment can

constitute an Eighth Amendment violation has been addressed in

some detail by the Court of Appeals for the Sixth Circuit. In

Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001),

the Sixth Circuit held that “an inmate who complains that delay

in medical treatment rose to a constitutional violation must

place verifying medical evidence in the record to establish the

detrimental effect of the delay in medical treatment to succeed.” 

The requirement of verifying medical evidence “ensure[d] an

accurate appraisal of whether the ‘alleged deprivation is

sufficiently serious.’” Cain v. Irvin, 286 Fed.Appx. 920 (6th

Cir. 2008), quoting Napier (internal citation omitted). The

Sixth Circuit subsequently clarified the scope of this rule in

Blackmore v. Kalamazoo County, 390 F.3d 890, 897-898 (6th Cir.

2004), by holding that Napier only applied in cases where the

injury is relatively minor or not apparent. As stated by the

Court in Blackmore:

In sum, the “verifying medical evidence” requirement is

relevant to those claims involving minor maladies or

non-obvious complaints of a serious need for medical

care. Napier, which was relied upon by the district

court, falls within this branch of decisions. In a

word, Napier does not apply to medical care claims

where facts show an obvious need for medical care that

laymen would readily discern as requiring prompt

medical attention by competent health care providers.

Napier applies where the plaintiff's “deliberate

indifference” claim is based on the prison's failure to

treat a condition adequately, or where the prisoner's

affliction is seemingly minor or non-obvious. In such

circumstances, medical proof is necessary to assess

whether the delay caused a serious medical injury. 

Id. at 898, citing Napier, 238 F.3d at 742.

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The impact of the Sixth Circuit’s clarification of Napier

was explained by the Court in Cain as follows:

Our clarification of Napier in Blackmore dictates a

two-part inquiry when dealing with the “objectively

serious” prong of the Farmer test. A reviewing court

should first determine whether the injury is “obvious,”

i.e. “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even

a lay person would easily recognize the necessity for a

doctor's attention.” Id. at 897 (quoting Gaudreault v.

Municipality of Salem, 923 F.2d 203, 208 (1st

Cir.1990)) (emphasis added). If there is an obvious

need for medical treatment, then the court must

determine whether the delay in securing that care was

reasonable. Id. at 899-900. If, however, the injury is

not apparent or relatively minor, Napier governs, and a

plaintiff must provide “medical evidence” demonstrating

that the delay in treatment resulted in additional

injury.

Applying this standard to Mr. Wirtz’s claim, the Court must 

first consider whether the ligament laxity in his right ankle

mandated treatment or was so obvious that a lay person would

perceive the need for immediate medical attention. Ankle

conditions similar to that of Mr. Wirtz, where there is no

evidence of fracture or dislocation, have frequently been found

by courts not to constitute serious medical conditions. See

Dotson v. Correctional Medical Services, 584 F.Supp.2d 1063 (W.D.

Tenn. 2008)(ankle sprain not serious medical need); Bacon v.

Harder, 248 Fed.Appx. 759 (7th Cir. 2007)(ankle sprain was not

serious medical condition); Galego v. Scott, 2011 WL 6752563 (D.

Nev. Sept. 8, 2011)(bone spurs and mild arthritic changes in

ankle not serious medical condition); Doumin v. Carey, 2008 WL

4241075 (N.D.N.Y. September 12, 2008)(twisted ankle not a serious

medical need); Johnson v. Kachelmeyer, 2006 WL 625837, at *9

(W.D.N.Y. Mar. 9, 2006)(ankle sprain with several contusions not

sufficiently serious medical condition); Chatin v. Artuz, 1999 WL

587885, at *3 (S.D.N.Y. Aug. 4, 1999)(soft-tissue swelling

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without ankle dislocation or fracture, and subsequent diagnoses

of a bone spur, neuroma and tendinitis, not sufficiently serious

to warrant protection under the Eighth Amendment). 

Further, while there is some indication in Mr. Wirtz’s

filings that he was in pain as a result of his ankle condition,

there is no evidence suggesting that Mr. Wirtz sought treatment 

for this pain with any regularity. Simply put, Mr. Wirtz has not

provided any evidence that his ankle condition interfered with

his daily life or caused him chronic or significant pain. 

Without any such evidence, the Court cannot find Mr. Wirtz’s

ankle condition readily distinguishable from any of the

conditions discussed above. Consequently, the Court concludes,

consistent with courts considering similar conditions, that Mr.

Wirtz’s ankle condition was nothing more than a minor malady or

non-obvious complaint. Under this circumstance, as discussed

above, Napier controls and requires Mr. Wirtz to provide medical

evidence demonstrating that the delay in receiving his ankle

brace resulted in serious medical injury. Id., 238 F.3d at 742. 

He has not done so here.

 Construing the facts in the light most favorable to Mr.

Wirtz, there is some evidence that, just prior to the replacement

of his ankle brace, he fell while climbing down from his top bunk

and injured his head, wrist, shoulder, and thigh. On the other

hand, however, there is no evidence that any of these injuries

was serious. Rather, the evidence demonstrates that, after his

fall on October 20, 2011, Mr. Wirtz had x-rays taken and the

results were negative. Although Mr. Wirtz contends that he

suffers from wrist and shoulder pain as a result, he provides

nothing beyond his conclusory assertion that this is so. Such an

assertion, without more, is insufficient to raise a genuine issue

of material fact and defeat a properly supported summary judgment

motion. See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888

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(1990). For these reasons, Mr. Wirtz has failed to demonstrate

that he was subjected to additional injury sufficient to cause

the delay in receiving his replacement ankle brace to rise to an

Eighth Amendment violation.

Turning briefly to the subjective component, assuming Mr.

Wirtz had demonstrated the existence of a serious medical need,

he is unable to demonstrate Dr. Friday’s deliberate indifference. 

The evidence demonstrates that Mr. Wirtz received adequate

medical care following the theft of his ankle brace. Initially,

Mr. Wirtz was seen by a nurse and given an ACE bandage and some

ibuprofen and referred to the podiatry clinic. Subsequently, Dr.

Friday diagnosed ankle ligament laxity. Mr. Wirtz was seen in

the health clinic in January, 2011 following a slip and by Dr.

Friday in June, 2011 for right ankle pain. At that time, Dr.

Friday determined that Mr. Wirtz’s ankle brace should be

replaced. The process for obtaining a new ankle brace was then

placed in motion. When Mr. Wirtz fell shortly before he received

his new brace, he had x-rays taken, the results of which were

negative. Mr. Wirtz has not provided evidence of any instances

where he sought specific medical treatment and was denied. 

Further, Mr. Wirtz has provided no evidence suggesting that the

delay in receiving his replacement ankle brace was the result of

Dr. Friday’s purposeful action or inaction. Further, Mr. Wirtz

has provided no evidence that Dr. Friday believed that Mr. Wirtz

would suffer serious medical consequences as a result of any

delay in receiving a new brace. For these reasons, Mr. Wirtz has

failed to establish deliberate indifference sufficient to

demonstrate a violation of the Eighth Amendment. Consequently,

it will be recommended that the defendants’ motion for summary

judgment be granted. 

IV. Recommended Disposition

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For the reasons stated above, it is recommended plaintiff’s

first motion for summary judgment (#24) be granted on the issue

of exhaustion and plaintiff’s second motion for summary judgment

(#30) be denied. Further, it is recommended that the defendants’

motion for summary judgment (#34) be granted. 

V. Procedure on Objections

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

Unites States Magistrate Judge

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